On October 29, 2007, the Ann Arbor News ran the following story: “Husband arrested first, wife soon follows.” A couple ended up in jail, both facing drunken driving charges, after Ypsilanti Police first pulled over the husband, who was driving with his young son in the car, and then arrested the mother when she showed up to pick up the boy. Police said they told the man’s 12-year-old son to call his mother to pick him up. But when she arrived with her 9-year-old daughter in the car, police said, she also appeared to have been drinking, and registered 0.13 on a PBT. Both children were turned over to a relative, and the parents held until they sobered up.”
In 1988, a Michigan police department found itself in federal court defending an officer that directed a 15-year-old and a two-year-old to walk to building and call someone to pick them up after he arrested their primary caregiver on the side of a busy highway. The 15-year-old used the public phone in the building to call her brother. However, he did not have a car and was unable to pick them up. In addition, she was unable to tell him exactly where she was. She was only able to tell him what city she was in and that she only had enough money to make one call. Eventually the building closed and the children were told that they had to leave. They waited outside the building until they were finally retrieved at 9:30 p.m., six hours after the police officer left. The two-year-old child had a wet diaper and had not eaten for six hours.
These two incidents, although separated by nearly two decades, highlight a glaring problem faced by law enforcement administrators, individual officers and community members across the country. Law enforcement agencies in Michigan, like those in other states, with few exceptions, are left to establish policies and procedures regarding situations when the arrestee is the primary caretaker of minor children with little and inconsistent guidance from the judicial and legislative bodies to which they normally look for direction. Often policies and procedures are established only after a tragic or near tragic event endangering children and encumbering individual officers and agencies in costly lawsuits. Individual officers, lacking procedural guidance make discretionary calls in the field that require them to predict outcomes and be held accountable if their discretionary calls result in tragedy. Establishing procedure, policy and practices in a systematic way can alleviate the dangers and risks to agencies, officers and children.
Assess existing policies, procedures and practices of Michigan Law Enforcement agencies relative to children whose primary caretaker(s) have been arrested.
Identify innovative strategies that could be implemented by local law enforcement agencies to improve their responses to the children of arrested parents.
Establish a data resource for individual officers and agencies that include a variety of possible responses.
Summary of the Background Literature
In the last 17 years there have been two studies that focused on law enforcement policies and what happens to children of arrested parents. The interesting finding is that 17 years ago policies were in place that addressed this issue, while today the policies are not as clearly stated. From 1991 to 1993, the American Bar Association’s (ABA) Center on Children and the Law conducted a study for the Children’s Bureau. One facet of this study included a national telephone survey of law enforcement agencies (n = 74) concerning policies and procedures regarding children at the time of caretaker arrest. ABA researchers reported that years ago sixty seven percent of responding departments had written policies outlining procedures for the care and placement of minor children when a parent or caretaker is arrested. of those agencies responding to the ABA survey, 43 percent indicated that officers rarely asked about the status of children at the time of arrest. Instead, they relied on the arrestee to volunteer information about children and their needs. In 1993, 72 percent of responding agencies reported that they had procedures in place to check the nominated caretaker’s suitability to serve as a temporary guardian. Finally, only eight percent of law enforcement agencies indicated that they reported children of arrestees to child protective services each time they make an arrest. Most agencies (78 percent) reported children whose parents have been arrested to child protective services only when there was evidence of abuse or neglect. Further, the study revealed that law enforcement officer’s made a variety of placement decisions in the field, including the potentially traumatic experience of taking the child to the police department, informally placing the child with neighbors or relatives or calling in Child Protective Services. (Smith & Elstein 1994)
In 2001, the California Research Bureau (CRB) administered a mail survey to 350 local law enforcement agencies and 58 county sheriff’s departments in California. The California survey found that nearly twothirds of local law enforcement departments in that state did not have written guidelines governing the care of children whose sole caretaker had been arrested. The study discovered what amounts to a de facto “don’t ask, don’t tell” policy. Officers in a majority of law enforcement agencies do not ask about an arrestee’s children at the scene of a crime or when making an arrest. If children are present at the time of arrest officers in less than half of the agencies will inquire about their care. If an arrestee offers information about children officers in 39 percent of the departments would get involved and only 12 percent would inquire about children if there was physical evidence of them at the scene (toys, baby bottles etc.). (Nieto 2002)
MCL 712A.14 states, “immediately take into custody any child who is found violating any law or ordinance, or whose surroundings are such as to endanger his or her health, morals, or welfare, or for whom there is reasonable cause to believe is violating or has violated a personal protection order issued pursuant to section 2(h) by the court”. Even with this many questions remain unanswered for Michigan law enforcement officials, such as whose responsibility is it to determine that the adult, in whose care the children are left, are suitable and that the children’s safety is assured? What happens to children when their guardian is arrested during a traffic stop some distance from their home and no family member is able to drive them home? When and how should an officer act when arresting the caregiver of a minor child/children? Further, what are the legal ramifications of these actions? The courts have been unclear in dictating when and how officers should respond. According to the NIJ, it appears that today many departments rely on officers to use their discretion to protect children found during raids of methamphetamine laboratories, during domestic violence calls, and when parents have locked children out of their home. The courts, the place to which police chiefs look when setting policy, have sent mixed signals and inconsistent guidance in this very important area. Some of these questions have been posed to appellate courts and the courts have not answered with a unanimous and consistent voice. It seems as though the courts are sending the signal that as long as the children are not so young as to shock the conscience and no harm results, the officer can leave children in risky situations and be found to have made an unfortunate judgment call but one that does not rise to the level of deprivation of qualified immunity. But if the abandoned child is harmed in some way, the officer should have anticipated it and will be found guilty of gross negligence and reckless disregard for safety. The problem with this guidance is that it requires the officer to foresee the future.
The survey tool is modeled after the California Research Bureau instrument used in a statewide survey of law enforcement agencies in 2001. In addition, selected law enforcement officials, law enforcement officers and Child Protective Services caseworkers will be informally interviewed to ensure law enforcement needs are being addressed by the survey instrument and to ensure cooperation in survey distribution. Surveys will be mailed to all local Michigan police departments (approximately 350) and county sheriffs’ departments (approximately 83). To obtain qualitative information, onsite interviews with officers from different regions of the state are planned to commence at the Police Officer’s Association of Michigan annual meeting June 3-5, 2009 in Grand Rapids Michigan.
about the author
Dr. Donna Selman is an Assistant Professor of Criminology & Criminal Justice at Eastern Michigan University where she teaches a variety of Criminal Justice courses and serves as the Graduate Student Advisor. Dr. Selman serves on the Executive Committee of the EMU Chapter of the American Association of University Professors and the Critical Criminology Division of the American Society of Criminology. Dr. Selman will be present at the POAM Convention to solicit volunteers and personally discuss all aspects of her survey. Please look for her in the exhibitor’s hall.